Part 11

Our best American lights are similar, beginning with the “Federalist” itself, which teaches that impeachment is for “those offences which proceed from _the misconduct of public men_, or, in other words, from the abuse or violation of some public trust: they are of a nature which may with peculiar propriety be denominated _political_, as they relate chiefly to injuries done immediately to the society itself.”[159] If ever injuries were done immediately to society itself, if ever there was an abuse or violation of public trust, if ever there was misconduct of a public man, all these are now before us in the case of Andrew Johnson. The “Federalist” has been echoed ever since by all who have spoken with knowledge and without prejudice. First came the respected commentator, William Rawle, who specifies among causes of impeachment “the fondness for the inordinate extension of power,” “the influence of party and of prejudice,” “the seductions of foreign states,” “the baser appetite for illegitimate emolument,” and “the involutions and varieties of vice, too many and too artful to be anticipated by positive law,” all resulting in what the commentator says are “not unaptly termed _political offences_.”[160] And thus Rawle unites with the “Federalist” in stamping upon impeachable offences the epithet “political.” If in the present case there has been on the part of Andrew Johnson no base appetite for illegitimate emolument and no yielding to foreign seductions, there has been most notoriously the influence of party and prejudice, also to an unprecedented degree an individual extension of power, and an involution and variety of vice impossible to be anticipated by positive law,--all of which, in gross or in detail, is impeachable. Here it is in gross. Then comes Story, who, writing with the combined testimony of English and American history before him, and moved only by a desire of truth, records his opinion with all the original emphasis of the “Federalist.” His words are like a judgment. The process of impeachment, according to him, is intended to reach “personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of _political office_”; and the commentator adds, that it “is to be exercised over offences which are committed by public men in violation of their public trust and duties,” that “the offences to which it is ordinarily applied are of a _political_ character,” and that, strictly speaking, “the power partakes of a _political_ character.”[161] Every word here is like an ægis for the present case. The later commentator, Curtis, is, if possible, more explicit even than Story. According to him, an impeachment “is not necessarily a trial for crime”; its purposes “lie wholly beyond the penalties of the statute or the customary law”; and this commentator does not hesitate to say that it is a proceeding “to ascertain _whether cause exists for removing a public officer from office_”; and he adds, that such cause of removal “may exist where no offence against positive law has been committed,--as where the individual has, from immorality, or imbecility, _or maladministration, become unfit to exercise the office_.”[162] Here again the power of the Senate over Andrew Johnson is vindicated so as to make all doubt or question absurd.

I close this question of impeachable offences by asking you to consider that all the cases which have occurred in our history are in conformity with the rule which so many commentators have announced. The several trials of Pickering, Chase, Peck, and Humphreys exhibit its latitude in different forms. Official misconduct, including in the cases of Chase and Humphreys offensive utterances, constituted the high crimes and misdemeanors for which they were respectively arraigned. These are precedents. Add still further, that Madison, in debate on the power of removal, at the very beginning of our Government, said: “I contend that _the wanton removal of meritorious officers_ would subject the President to impeachment and removal from his own high trust.”[163] But Andrew Johnson, standing before a crowd, said of meritorious officers that he would “kick them out,”[164] and forthwith proceeded to execute his foul-mouthed menace. How small was all that Madison imagined, how small was all that was spread out in the successive impeachments of our history, if gathered into one case, compared with the terrible mass now before us!

From all these concurring authorities, English and American, it is plain that impeachment is a power broad as the National Constitution itself, and applicable to the President, Vice-President, and all civil officers through whom the Republic suffers or is in any way imperilled. Show me an act of evil example or influence committed by a President, and I show you an impeachable offence, great in proportion to the scale on which it is done, and the consequences menaced. The Republic must receive no detriment; and impeachment is a power by which this sovereign rule is maintained.

UNTECHNICAL FORM OF PROCEDURE.

The form of procedure has been noticed in considering the political character of impeachment; but it deserves further treatment by itself. Here we meet the same latitude. It is natural that the trial of political offences, before a political body, with a political judgment only, should have less of form than a trial at Common Law; and yet this obvious distinction is constantly disregarded. The authorities, whether English or American, do not leave the question open to doubt.

An impeachment is not a technical proceeding, as at _Nisi Prius_ or in a county court, where the rigid rules of the Common Law prevail. On the contrary, it is a proceeding according to Parliamentary Law, with rules of its own, unknown in ordinary courts. The formal statement and reduplication of words, constituting the stock-in-trade of so many lawyers, are exchanged for a broader manner, more consistent with the transactions of actual life. The precision of history and of common sense is enough, without the technical precision of an indictment.

From time immemorial there has been a just distinction between proceedings in Parliament and proceedings in the ordinary courts of justice, which I insist shall not be abandoned. The distant reign of Richard the Second, beyond the misfortunes touching us so much in Shakespeare, supplies a presiding rule which has been a pole-star of Constitutional Law; nor is this in any vague, uncertain language, but in the most clear and explicit terms, illumined since by great lights of law.

On what was called an appeal in Parliament, or impeachment, it has solemnly declared that the Lords were not of right obliged to proceed according to the course or rules of the Roman law or according to the law or usage of any of the inferior courts of Westminster Hall, but by the law and usage of Parliament, which was itself a court.

“In this Parliament [in the 11th year of King Richard the Second, A. D. 1387-88] all the Lords then present, spiritual as well as temporal, claimed as their franchise that the weighty matters moved in this Parliament, and which shall be moved in other Parliaments in future times, touching the peers of the land, shall be managed, adjudged, and discussed by the course of Parliament, and in no sort by the Law Civil, or by the common law of the land, used in the other lower courts of the kingdom.”[165]

The Commons approved the proceedings, and it has been remarked, in an important official report, that “neither then nor ever since have they made any objection or protestation that the rule laid down by the Lords … ought not to be applied to the impeachments of commoners as well as peers.”[166] Accordingly Lord Coke declares, that “all weighty matters in any Parliament moved concerning the peers of the realm, or commoners in Parliament assembled, ought to be determined, and adjudged, and discussed by the course of the Parliament, and not by the Civil Law, nor yet by the common laws of this realm used in more inferior courts.” Then, founding on the precedent of 11th Richard the Second, he announces, that “judges ought not to give any opinion of _a matter of Parliament_, because it is not to be decided by the common laws, but _secundum legem et consuetudinem Parliamenti_”; and he adds, “So the judges in divers Parliaments have confessed.”[167]

But impeachment is “a matter of Parliament,” whether in England or in the United States. It was so at the beginning, and has been ever since.

Even anterior to Richard the Second the same conclusion was recognized, with illustrative particularity, as appears by the trial of those who murdered King Edward the Second, thus commented by an eminent writer on Criminal Law, who was also an experienced judge, Foster:--

“It is well known, that, in parliamentary proceedings of this kind, it is and ever was sufficient that matters appear with proper light and certainty to a common understanding, without that _minute exactness_ which is required in criminal proceedings in Westminster Hall.”[168]

Thus early was the “minute exactness” of a criminal court discarded, while the proceedings were adapted to “a common understanding.” This becomes important, not only as a true rule of procedure, but as an answer to some of the apologists, especially the Senator from West Virginia [Mr. VAN WINKLE], who makes technicality a rule and essential condition.

Accordingly by law and custom of Parliament we are to move; and here we meet rules of pleading and principles of evidence entirely different from those of the Common Law, but established and fortified by a long line of precedents. This stands forth in the famous “Report from the Committee of the House of Commons appointed to inspect the Lords’ Journals in relation to their Proceedings on the Trial of Warren Hastings,” which, beyond its official character, is enhanced as the production of Edmund Burke.

“Your Committee do not find that any rules of pleading, as observed in the inferior courts, have ever obtained in the proceedings of the High Court of Parliament, in a cause or matter in which the whole procedure has been within their original jurisdiction. Nor does your Committee find that any demurrer or exception, as of false or erroneous pleading, hath been ever admitted to any impeachment in Parliament, as not coming within the form of the pleading.”[169]

This principle appears in the great trial of Strafford, 16th Charles the First, 1640-41, stated by no less a person than Pym, on delivering a message of the Commons reducing the charges to more particularity: “Not that they are bound by this way of _special_ charge; and therefore, as they have taken care in their House, upon protestation, that this shall be no prejudice to bind them from proceeding _upon generals_ in other cases, and that they are not to be ruled by proceedings in other courts, which protestation they have made for preservation of power of Parliaments, so they desire that the like care may be had in your Lordships’ House.”[170] In this broad language is a just rule applicable to the present case.

The question came to formal judgment on the memorable trial of the Tory preacher, Sacheverell, March 10, 1709-10, impeached for high crimes and misdemeanors, on account of two sermons in which he put forth the doctrines of Non-Resistance and denounced the Revolution of 1688, by which English liberty was saved. After argument on both sides, and questions propounded by the Lords, the judges delivered their opinion _seriatim_, that, by the law of England and the constant practice of Westminster Hall, “the particular words supposed to be criminal ought to be specified in indictments or informations.” And yet, in face of this familiar and indisputable rule of the Common Law, thus pointedly declared, the Lords solemnly resolved:--

“That, by the law and usage of Parliament, in prosecutions by impeachments for high crimes and misdemeanors, by writing or speaking, the particular words supposed to be criminal are not necessary to be expressly specified in such impeachments.”[171]

The respondent, being found guilty, moved in arrest of judgment:--

“That no entire clause, sentence, or expression, contained in either of his sermons or dedications, is particularly set forth in his impeachment, which he has already heard the judges declare to be necessary in all cases of indictments or informations.”[172]

The Lord Chancellor, denying the motion, communicated to the respondent the resolution already adopted after full debate and consideration, and added:--

“So that, in their Lordships’ opinion, the law and usage of the High Court of Parliament being a part of the law of the land, and that usage not requiring the words should be _expressly specified_ in impeachments, the answer of the judges, which related only to the course used in indictments and informations, does not in the least affect your case.”[173]

And so the judgment was allowed to stand.

The substantial justice of this proceeding is seen, when it is considered that the whole of the libel had been read at length, so that the respondent had the benefit of anything which could be alleged in extenuation or exculpation, as if the libellous sermons had been entered _verbatim_. The Report already cited presents the practical conclusion:--

“It was adjudged sufficient to state the crime generally in the impeachment. The libels were given in evidence; and it was not then thought of, that nothing should be given in evidence which was not specially charged in the impeachment.”[174]

The principle thus solemnly adjudged was ever afterwards asserted by the managers for the House of Commons in all its latitude, and with an energy, zeal, and earnestness proportioned to the magnitude of the interests involved,--as appeared conspicuously on the impeachment for high treason of the Lords who had taken part in the Rebellion of 1715 to bring back the Stuarts. Lord Wintoun, after conviction, moved in arrest of judgment, and excepted against the impeachment for error, on account of the treason not being described with sufficient certainty,--the day on which the treason was committed not having been alleged. The learned counsel, arguing that Parliamentary Law was part of Common Law, submitted “whether there is not the same certainty required in one method of proceeding at the Common Law as in another.”[175] To this ingenious presentment, by which proceedings in Parliament were brought within the grasp of the Common Law, the able and distinguished managers replied with resolution, asserting the supremacy of Parliamentary Law. Walpole, afterwards the famous Prime Minister, began:--

“Those learned gentlemen seem to forget _in what court they are_. They have taken up so much of your Lordships’ time in quoting of authorities and using arguments to show your Lordships what would quash an indictment in the courts below, that they seem to forget they are now in a court of Parliament and on an impeachment of the Commons of Great Britain.… I hope it will never be allowed here as a reason, that what quashes an indictment in the courts below will make insufficient an impeachment brought by the Commons of Great Britain.”[176]

The Attorney-General supported Walpole:--

“I would take notice that we are upon an impeachment, and not upon an indictment. The courts below have set forms to themselves, which have prevailed for a long course of time, and thereby are become the forms by which those courts are to govern themselves; but it never was thought that the forms of those courts had any influence on the proceedings of Parliament.”[177]

Cowper, a brother of the Lord Chancellor of that name, said:--

“If the Commons, in preparing articles of impeachment, should govern themselves by precedents of indictments, in my humble opinion they would depart from the ancient, nay, the constant, usage and practice of Parliament.”[178]

Sir William Thomson followed:--

“The precedents in impeachments are not so _nice and precise in form_ as in the inferior courts.”[179]

The judges, in answer to questions propounded, declared the necessity in indictments of mentioning “a certain day.” But the Lords, in conformity with ancient usage, set aside this technical objection, and announced:--

“That the impeachment is sufficiently certain in point of time, according to the forms of impeachments in Parliament.”[180]

Thus do authoritative precedents exhibit a usage of Parliament, or Parliamentary Law, unlike that of the Common Law, which on trials of impeachment seeks substantial justice, but is not “nice and precise in form.” If the proceedings are not absolutely according to the rule of reason, plainly the technicalities of the Common Law are out of place. It is enough, if they are clear to “a common understanding,” without the “minute exactness” of a criminal court. But this is according to reason. A mere technicality, much more a quibble, often efficacious on a demurrer, is a wretched anachronism, when we are considering a question of political duty. Especially must this be so under the genius of republican institutions. The latitude established in England cannot be curtailed in the United States, and it becomes more essential in proportion to the elevation of the proceedings. Ascending into the region of history, the laws of history cannot be neglected.

Even if the narrow rules and exclusions of the Common Law could be tolerated on the impeachment of an inferior functionary, they must be disclaimed on the trial of a chief magistrate, involving the public safety. The technicalities of law were invented for protection against power, not for the immunity of a usurper or tyrant. When set up for the safeguard of the weak, they are respectable, but on impeachments they are intolerable. Here again I cite Edmund Burke:--

“God forbid that those who cannot defend themselves upon their merits and their actions may defend themselves behind those fences and intrenchments that are made to secure the liberty of the people, that power and the abusers of power should cover themselves by those things which were made to secure liberty!”[181]

Never was there a case where this principle was more applicable than now.

The origin of impeachment in the National Constitution and contemporary authority vindicate this very latitude. In this light the proceeding was explained by the “Federalist,” in words which should be a guide now:--

“_This can never be tied down by such strict rules_, either in the delineation of the offence by the prosecutors or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.”[182]

This article was by Alexander Hamilton, writing in concert with James Madison and John Jay. Thus, by the highest authority, at the adoption of the National Constitution, it is declared that impeachment “can never be tied down by strict rules,” and that this latitude is applicable to “the delineation of the offence,” meaning thereby the procedure or pleading, and also to “the construction of the offence,” in both of which cases the “discretion” of the Senate is enlarged beyond that of ordinary courts, and so the ancient Parliamentary Law is vindicated, and the Senate is recognized within its sphere.

RULES OF EVIDENCE.

From form of procedure I pass to rules of evidence; and here again the Senate must avoid technicalities, and not allow any artificial rule to shut out the truth. It would allow no such thing on the expulsion of a Senator. How allow it on the expulsion of a President? On this account I voted to admit all evidence offered during the trial,--believing, in the first place, that it ought to be heard and considered, and, in the second place, that, even if shut out from this Chamber, it could not be shut out from the public, or be shut out from history, both of which must be the ultimate judges. On the impeachment of Prince Polignac and his colleagues of the French Cabinet, in 1830, for signing the ordinances which cost Charles the Tenth his throne, some forty witnesses were sworn, without objection, in a brief space of time, and no testimony was excluded. An examination of the two volumes entitled “Procès des Derniers Ministres de Charles X.” confirms what I say. This example, which commends itself to the enlightened reason, seems in harmony with declared principles of Parliamentary Law.

As in pleadings, so in evidence, the Law of Parliament, and not the Common Law, is the guide of the Senate. In other courts the rules vary, as on trial by jury in the King’s Bench depositions are not received, while in Chancery just the reverse is the case. The Court of Parliament has its own rules. Here again I quote the famous Report:--

“No doctrine or rule of law, much less the practice of any court, ought to have weight or authority in Parliament further than as such doctrine, rule, or practice is agreeable to the proceedings in Parliament, or hath received the sanction of approved precedent there, _or is founded on the immutable principles of substantial justice_, without which, your Committee readily agrees, no practice in any court, high or low, is proper or fit to be maintained.”[183]

The true rule was enunciated:--

“The Court of Parliament ought to be open with great facility to the production of all evidence, except that which the precedents of Parliament teach them authoritatively to reject, or which hath no sort of natural aptitude directly or circumstantially to prove the case.… The Lords ought _to enlarge, and not to contract, the rules of evidence_, according to the nature and difficulties of the case.”[184]

Its point appears in a single sentence:--

“To refuse evidence is to refuse to hear the cause.”[185]

In striking harmony with this most reasonable conclusion is the well-known postulate of Jeremy Bentham, who gave so much thought to the Law of Evidence: “Evidence is the basis of justice: to exclude evidence is to exclude justice.”[186]

The precedents of impeachment, including the trials of Strafford, Sacheverell, Macclesfield, and the Rebel Lords in 1715, and again in 1745, all illustrate the liberality of the proceedings, while the judgment of Lord Hardwicke, in concurrence with the rest of the judges, and with the support of the bar, announced, that “the judges and sages of the law have laid it down that there is but _one_ general rule of evidence,--the best that the nature of the case will admit.”[187] And this is the master rule governing all subordinate rules. In harmony with it is another announced by Lord Mansfield: “All evidence is according to the subject-matter to which it is applied.”[188] These two rules are expansive, and not narrow,--liberal, and not exclusive. They teach us to regard “the nature of the case” and “the subject-matter.” But the case is an impeachment, and the subject-matter is misbehavior in high office. Before us is no common delinquent, whose offence is against a neighbor, but the Chief Magistrate, who has done wrong to his country. One has injured an individual, the other has injured all. Here again I quote the Report:--

“The abuses stated in our impeachment are not those of mere individual, natural faculties, but the abuses of civil and political authority. The offence is that of one who has carried with him, in the perpetration of his crimes, whether of violence or of fraud, the whole force of the State.”[189]

In such a case there must be a latitude of evidence commensurate with the arraignment. And thus we are brought to the principle with which I began.